Justices Pass on Alabama’s in Vitro Fertilization Ruling (1)

An Alabama Supreme Court ruling allowing patients to sue in vitro fertilization providers for wrongfully destroying embryos will stand after the US Supreme Court announced Monday that it is declining to review the case.

The state high court’s February decision that human life begins at fertilization and that unborn children are people for purposes of the state’s wrongful death law, regardless of viability, was greeted with jeers and cheers when it first announced. Reproductive rights advocates called it an extreme ruling that opened the door to groups pushing the fetal personhood argument, while anti-abortion advocates praised it as a victory for life.

In Alabama, providers immediately paused treatments out of fear of incurring liability for destroying frozen embryos, even inadvertently.

State lawmakers subsequently enacted a bill protecting in vitro providers from civil and criminal liability, allowing them to resume in vitro fertilization procedures without fear of incurring damages. But the hospital at the center of the case said in April that it will no longer be able to offer the services after Dec. 31, 2024.

The new law, however, didn’t affect the personhood ruling or fully protect IVF care, according to a September report by Pregnancy Justice, which says it’s devoted to protecting and advancing pregnant people’s right to bodily autonomy.

While Alabama was the first state to expressly deem embryos to be people, a variety of laws in other states that use “personhood language,” including those that criminalize fetal homicide and child abuse, could make IVF the focus of legal challenges there, the group said.

The decision also was expected to upend the $40 billion assisted reproductive technology industry at a time when a number of high-profile mishaps involving wrongly discarded embryos or equipment failures has put it at the forefront of abortion politics.

Congressional Democrats have tried to protect access to IVF on a national level, but were blocked by Republican senators. Some states, too, have moved to tighten citizens’ rights to the procedure. In California, for example, Gov. Gavin Newsom (D) recently signed a bill that requires health plans to cover IVF treatments for plan members on the same terms.

The two Alabama defendants, the Center For Reproductive Medicine PC and Mobile Infirmary Association, asked the nation’s top court to review the case in early August. They argued that the state supreme court’s imposition of “previously unanticipated punitive liabilty” violated the 14th Amendment guarantees of due process and fair notice. Alabama’s top court also didn’t consider if the IVF patients had standing to bring the case, they said.

The plaintiffs didn’t respond to the petition.

IVF is a procedure in which doctors harvest multiple eggs from a woman, then fertilize them in a petri dish with sperm provided by her partner or donor. Fertilized eggs may be implanted in the woman’s uterus or frozen for later use.

Simpson Thacher & Bartlett LLP, Starnes Davis Florie LLP, and Frazer Greene represent the providers.

The case is Ctr. for Reprod. Med. PC v. Burdick-Aysenne, U.S., No. 24-127, cert. denied 10/7/24.